COURT FILE NO.: CV-23-186
DATE: 2024-02-01
ONTARIO SUPERIOR COURT OF JUSTICE
Application under Rule 14.05(3) (d), (e) and (g) of the Rules of Civil Procedure; In the alternative under Rule 14.05(2) of the Rules of Civil Procedure and s.207 (2) OF THE Residential Tenancies Act
B E T W E E N:
ULETT MONTAQUE Applicant
-and-
LORRAINE WEST Respondent
Counsel: Delaram M. Jafari, for the Applicant Lorraine West, Unrepresented
HEARD: January 29, 2024
REASONS FOR DECISION RE APPLICATION FOR TRESPASS TO PROPERTY
CORRIGENDUM – February 9, 2024, in paragraph 79 (iv) amended to read February 3, 2024, at 4:00 pm.
SECOND CORRIGENDUM – Third-party non-arm’s-length purchaser in paragraph 4 amended to read third-party arm’s-length purchaser.
OVERVIEW
[1] This is an urgent application that came before me for hearing on the regular motions list. The application is for, inter alia, a declaration of trespass, an order requiring the Respondent to leave the property and vacant possession to be provided to the Applicant. The Applicant also requests a determination that no Landlord/Tenant relationship ever existed between the parties, and that the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”), does not apply to this matter. The Applicant further seeks an order for the payment of damages exceeding $40,000.
FACTS
[2] The Applicant, Ulett Montaque (“Mr. Montaque”) is approximately 82 years old and is the owner of certain property located at 677 Church St. Trent River, ON K0L 2Z0 (the “property”).
[3] The Respondent, Lorraine West (“Ms. West”) is approximately 54 years old and is the occupier of one of the four cabins located on Mr. Montaque’s property. Ms. West claims to be a tenant of Mr. Montaque pursuant to an alleged oral agreement to lease made sometime in late August 2023. Mr. Montaque adamantly denies that Ms. West is a tenant and asserts that she is instead a trespasser.
[4] On or about September 18, 2023, Mr. Montaque sold all right, title and interest in his property, to a third-party arm’s-length purchaser with a scheduled closing date of November 30, 2023. Vacant possession was required to be provided on closing.
[5] As Ms. West alleges that she is a tenant and is refusing to vacate the property, vacant possession could not be provided on November 30, 2023, and the sale did not close. However, Mr. Montaque was able to negotiate an extension of the sale agreement to March 28, 2024. Vacant possession is required on or before March 28, 2024, to complete the Agreement of Purchase and Sale.
Mr. Montaque’s Version of Events
[6] Mr. Montaque’s property which is the subject of this application has four cabins located on it.
[7] In June 2023, Mr. Montaque listed his property for sale on a Multiple Listing Service (“MLS”) with the assistance of his realtor, Dorlene Lin (“Ms. Lin”), who also posted a “For Sale” sign at the Property.
[8] By September 1, 2023, two of the cabins located on the property (identified as Cabin C3 and Main House A1) were vacant; a third cabin was rented to a third party who was preparing to vacate; and Mr. Montaque resided in the fourth cabin with plans to vacate on the sale of the property. Vacant possession was to be provided to any purchaser on the closing date of the sale of the property.
[9] When Mr. Montaque’s property did not sell by September 1, 2023, Mr. Montaque’s real estate agent, Ms. Lin, recommended that he begin collecting and vetting rental applications in case he wished to rent the vacant cabins commencing October 1, 2023, in the event the property did not sell by the end of September 2023.
[10] In accordance with Ms. Lin’s recommendations, Mr. Montaque added a small “For Lease” sign in front of Cabin C3.
[11] The Respondent, Ms. West, was a potential rental applicant for Cabin C3, on the property.
[12] According to Mr. Montaque, Ms. West attended at the property prior to September 5, 2023, and indicated that she was interested in renting Cabin C3. Mr. Montaque deposed that during Ms. West’s visit, he provided the following information to Ms. West: (i) the property would be available for rent starting October 1, 2023 only if it could not be sold by the end of September 2023; (ii) Ms. West would need to be vetted by his property manager, Claudette Ricketts (“Ms. Ricketts”), who would require an application form be completed and a credit check performed before Ms. West or any person was accepted as a tenant; and (iii) Ms. Ricketts would contact Ms. West if the property was not or could not be sold by the end of September 2023, dependent upon the results of Ms. West’s credit check. Mr. Montaque deposed that after providing Ms. West with this information she wrote her name and phone number on a small piece of paper and left his property.
[13] Mr. Montaque deposed that on or around September 5, 2023, he passed Ms. West’s phone number to Ms. Ricketts for the purpose of vetting her and to perform a credit check. Shortly thereafter, Ms. Ricketts called Ms. West and obtained her email address, and then sent a blank application form to Ms. West by email, to complete and return. Mr. Montaque provided the court with a copy of the emails evidencing this exchange.
[14] The rental application form, which was filed with the court, required information such as occupation, employer, proof of income, employer’s letter, past pay stubs, credit history and confirmation of permission for credit check.
[15] On or about September 8, 2023, Ms. West returned a partially completed rental application form to Ms. Ricketts and indicated on the form that her desired move-in date was, “Oct 1 any time after Sept 20th”. None of the required information and documentation were included or attached to the form.
[16] There was no further communication between Ms. Ricketts and Ms. West.
[17] Ms. Ricketts did not perform a credit check as there was insufficient information provided on the rental application form by Ms. West, and the property sold on September 18, 2023, and was not available for rent. Mr. Montaque provided a copy of the emails and the partially completed form evidencing these statements.
[18] Mr. Montaque further swore that on or around September 14, 2023, while there was no agreement to lease, and while the property was still actively being marketed for sale, Ms. West telephoned him and asked if she could bring a “countertop” and leave it at the property. Mr. Montaque stated that he reminded Ms. West that the Property was not for rent until October 1, 2023, if it did not sell, but “out of courtesy” advised she could bring the countertop if she had to, but she would have to retrieve it if the property was not rented to her.
[19] Also, on or about September 14, 2023, Ms. Lin advised Mr. Montaque that she had, “serious interested purchasers” who were going to make an offer to purchase the property with a closing date of November 30, 2023. On the same day, in response to this information, Mr. Montaque called Ms. West and told her NOT to bring the countertop as the cabin was no longer for rent.
[20] Mr. Montaque attested that to his surprise, Ms. West told him that she did not care and was still coming to the property. When Mr. Montaque was absent from the property (picking up tires), Ms. West arrived at his property with an SUV and a U-Haul truck, containing not only the countertop but also outdoor furniture and some indoor items.
[21] Mr. Montaque attested that Ms. West entered Cabin C3 while he was off the premises. She did not have permission and was specifically advised that the property had been sold and was not for lease.
[22] Mr. Montaque and Ms. Lin both provided affidavit evidence that Ms. West was not provided with a key and the cabin was unlocked for the purpose of facilitating real estate showings around this date.
[23] Mr. Montaque stated that when he arrived home that same day, he was shocked and upset to see Ms. West and her belongings. Mr. Montaque attested that he approached Ms. West and requested that she vacate the cabin immediately and leave his property. Ms. West refused. Mr. Montaque then telephoned the police and reported Ms. West for trespassing.
[24] When the police arrived, Ms. West had already moved her belongings inside the cabin. Mr. Montaque provided affidavit evidence that Ms. West blatantly lied to the police officers and told them that she had a verbal agreement and was a tenant at the property. The police accepted Ms. West’s statement and told Mr. Montaque that they could not assist, and he would need to go to the Landlord and Tenant Board.
[25] Mr. Montaque deposed that he never agreed to lease the cabin to Ms. West, never provided her with a key to the property, and has never received any payment on account of rent or otherwise, at any time, from Ms. West.
[26] The events described above and that followed are explained in extensive detail in the affidavits of Mr. Montaque, Ms. Lin, and Ms. Ricketts, with accompanying attachments corroborating their statements.
[27] In summary, Mr. Montaque’s evidence is that Ms. West entered his property without authority, without payment, and without a key. She has steadfastly remained at the property, refused to vacate, and has had Mr. Montaque arrested for “unlawful entry” into Cabin C3 (amongst other charges). Further, Ms. West has purposefully delayed and interfered with the real estate transaction (which closing has been extended to March 28, 2024). She has been empowered to act in this manner based upon her simple statement to the police that she has, “a verbal lease agreement”.
Ms. West’s Version of Events
[28] Ms. West claims that she received information sometime between August 11 and August 16, 2023, from “friends” who saw a “For Rent” sign on Cabin C3.
[29] Ms. West claims that in response to this information, she telephoned Mr. Montaque, attended at the property on August 23 and/or August 25, 2023, met with Mr. Montaque and, “came up with a deal” for the rental of the property.
[30] Ms. West claims she and Mr. Montaque reached an “oral agreement” to rent the property and that she paid him $1,400.00 in cash for the first months’ rent and agreed that the “countertop” would cover the last months’ rent. Ms. West claims that after she made the first months’ payment, Mr. Montaque refused any further payments and denied that any oral agreement to lease the property was made.
[31] Ms. West argues that she is a tenant and not a trespasser. I note that Ms. West has provided no corroboration in the form of documents, emails, recordings, or calls that would support her claim that an oral agreement was reached. Instead, Ms. West’s entire claim is dependent upon a ripped up “For Rent” sign and Ms. West’s bald statement that an oral agreement to lease the property was reached with Mr. Montaque on August 23 and/or August 25, 2023.
[32] Ms. West submits that the RTA, governs this application and that this court has no jurisdiction.
Review and Assessment of the Evidence Filed with the Court
[33] By her affidavit sworn December 18, 2023, Ms. West attests that a “deal” was reached between herself and Mr. Montaque for the rental of the property. Ms. West does not provide any details other than that the rental amount was agreed to be $1,400 per month and that her last month’s rent would be waived in favour of a barter agreement wherein Mr. Montaque would retain a granite countertop that she intended to bring to the property to create an outdoor bar barbeque area.
[34] Immediately following this statement that a “deal” was reached, Ms. West goes on to state that she, “went home wanting to make sure I could get people to take my place in Branford…”. While not determinative, this second statement somewhat contradicts Ms. West’s earlier claim that a binding oral agreement was reached for the rental of the property during her initial discussions with Mr. Montaque.
[35] Ms. West did not produce any corroborative evidence that confirmed her “oral” agreement, nor did she provide any details as to the terms of any alleged “tenancy” having been put into writing, by agreement, lease, email or otherwise.
[36] Ms. West claimed, contrary to all other evidence, that she had a key to the property but did not advise how she obtained a key.
[37] When queried as to whether she had ever made any rental payment to Mr. Montaque, Ms. West advised the court that she paid Mr. Montaque $1,400.00 in cash in $100 bills, “in front of her friend Trudy”, whom she claimed to be a witness to the transaction. Again, no corroboration was submitted to support this claim.
[38] When queried as to why no corroboration had been provided to confirm payment, Ms. West advised that she, “didn’t know that she had to” and then added that she had included an email in her materials from “Trudy” that confirmed the monies had been paid to Mr. Montaque. Having thoroughly searched the record, I found no emails from Trudy contained in any of the material. Further, there are no statements contained in Ms. West’s affidavits or attachments that suggest that Trudy was present or witnessed the payment of any funds to Mr. Montaque.
[39] Having searched the record I also note that the same “Trudy” was noted by Ms. West as being her previous landlord on the lease application form submitted to Mr. Montaque’s property manager.
[40] As for proof that she was a “tenant” and not a “trespasser”, in addition to her statement that she entered an “oral agreement” with Mr. Montaque, Ms. West’s only other evidence is a “Rental Sign” that had been placed in the window of the cabin that she viewed and now occupies. Ms. West provided a photocopy of the rental sign in her materials – which had been ripped into several pieces and photographed. Ms. West claims that she was “so excited” she took the sign as a souvenir.
[41] The fact that the property had a “Rental or For Lease Sign” is not disputed. The fact that Ms. West took the sign from the premises – and then produced a photocopy of a ripped Rental Sign – does not assist Ms. West in this dispute.
[42] The bulk of the remaining statements contained in Ms. West’s affidavits are comprised of mainly irrelevant, inflammatory hearsay statements that do not establish any grounds upon which this court could find a residential tenancy relationship between Ms. West and Mr. Montaque.
[43] In contrast to Ms. West’s evidence, Mr. Montaque provided ample and overwhelming evidence, corroborated by independent witnesses and documents, that established that Ms. West was not a tenant, was never authorized to move into or inhabit the premises, and never paid any amount of money to Mr. Montaque on account of rent or otherwise.
[44] The evidence submitted by Mr. Montaque, through the affidavits and supporting documentation, establishes that Mr. Montaque intended, AT ALL TIMES, to sell the property upon which the cabin is situated. The property had been listed for sale on a MLS since June 2023, with Ms. Lin. After the property failed to sell, Ms. Lin proposed that Mr. Montaque interview prospective tenants in the event the property did not sell prior to the end of September 2023. Ms. Lin provided corroborative evidence as did Ms. Ricketts.
[45] With respect to the evidence relating to the partially completed, unsigned rental application form, I note that Ms. West did not deny that the rental application attached to Mr. Montaque’s materials was not the form that she provided to Mr. Montaque’s property manager.
[46] Ms. West also did not deny that she was the person who inserted the typewritten portion that stated she was looking to move in “Oct 1 any time after Sep20th”. Instead, Ms. West insisted to the court during her submissions (which is echoed in her materials) that she was already living at the premises.
[47] The rental application form as completed by Ms. West, provides specific contradictory evidence to Ms. West’s sworn statement that she had “already” moved into the property by “Sept. 1/4 2023”. Further evidence contradicting this statement is found in Ms. Lin’s affidavit. Ms. Lin provides details of the dates that she showed the cabin to potential purchasers and specifically noted that Ms. West had not moved her person or property into the premises prior to September 14, 2023.
[48] Having considered the whole of the evidence submitted, I reject Ms. West’s evidence that she moved into the property on or before September 14, 2023. Instead, I prefer and accept the evidence submitted by Mr. Montaque and Ms. Lin, that Ms. West moved into the property on September 14, 2023, after Mr. Montaque had specifically advised Ms. West that he would not rent the property to her as he was selling the property.
[49] I find that Ms. West’s statement that she moved into the property on or before September 2, 2023, to be a concocted falsehood intended to buttress her argument that she had an “oral agreement” to lease the property prior to the sale of the property.
[50] In contrast to Ms. West’s materials, the evidence submitted by Mr. Montaque was corroborated by independent evidence consisting of emails, the lease application, and supporting affidavits sworn by Ms. Ricketts and Ms. Lin.
[51] Proof that Mr. Montaque required a written lease was provided through the affidavit of Ms. Ricketts. Further proof that a written lease was required was also inadvertently provided by Ms. West who attached to her January 24, 2024, affidavit, copies of emails sent by another proposed tenant named Sean Graham seeking production of a lease to secure the residential tenancy.
[52] To the extent that there is a conflict between the evidence submitted by Mr. Montaque and Ms. West, I prefer and accept the evidence submitted by Mr. Montaque.
[53] As a result, based on the whole of the evidence submitted, I find that there was no written or verbal agreement to lease between the parties, and no intention by Mr. Montaque to lease Cabin C3 to Ms. West unless: (i) the property was not sold by the end of September 2023; and (ii) Ms. West had been vetted by Mr. Montaque’s property manager and a written lease entered into.
[54] I further find that had the property not sold, there was no intention to lease the property to Ms. West or any other rental applicant, without Ms. Ricketts first vetting the rental applicants, and once vetted, having the applicant enter into a lease agreement.
[55] Finally, I find based on the facts of the present case, that as the direct result of Ms. West’s actions on September 14, 2023, Mr. Montaque specifically rejected renting the premises to Ms. West under any circumstances regardless of whether the property sold, or not.
[56] I further reject Ms. West’s evidence that she paid any amount of money to Mr. Montaque on account of rent. Ms. West provided absolutely no proof of payment, which could have been obtained by way of a bank statement, debit statement, receipt, or an affidavit from Ms. West’s friend Trudy, if in fact Trudy was present and witnessed the alleged transaction.
[57] I accept Mr. Montaque’s evidence that there was no rent or rent deposit collected; there was no rental amount agreed upon; no rental amount paid; and no key provided to Ms. West.
[58] I accept Mr. Montaque’s evidence that Ms. West was never authorized to enter or remain in the property or in Cabin C3.
[59] Based on the admissible evidence filed with the court, I find that Ms. West entered and moved into the property without permission, paid no money to Mr. Montaque at any time, refused to vacate the premises despite being requested and directed to do so on many occasions, lied to the police to secure her residency, and was and has always been an unauthorized intruder upon Mr. Montaque’s property.
[60] I specifically find on the record filed that no landlord tenant relationship ever existed between Ms. West and Mr. Montaque.
[61] I accept Mr. Montaque’s evidence that verbal notices of trespass were given to Mr. West from the moment he discovered that she had taken possession of the property on September 14, 2023, and that written notice requesting Ms. West to leave was given on September 25, 2023, by Mr. Montaque’s lawyer confirming that she was not a tenant and had no right to occupy the premises, and again on November 22, 2023, in person.
[62] As I advised at the hearing of the motion, I make no findings relating to Mr. Montaque’s allegations of property damage as these issues are less pressing and require the scheduling of a full day long motion.
[63] As previously outlined, Mr. Montaque’s property was originally sold with the closing date of November 30, 2023, pursuant to an Agreement of Purchase and Sale dated September 18, 2023. Vacant possession was to be provided to the purchasers on the closing date.
[64] As Mr. Montaque was unable to close the transaction on November 30, 2023, solely due to Ms. West’s unlawful occupation, the closing has been extended to March 28, 2023, with a $2,000 reduction in the purchase price, pursuant to an amendment to the Agreement of Purchase and Sale.
[65] The urgency attached to the disposition of this matter is real and pressing.
THE LAW
i. Does the Superior Court have Jurisdiction to Determine this Application?
[66] The Superior Court retains jurisdiction to make a declaration of trespass and to grant orders for possession. The common law allows such relief to be granted by way of application to the Superior Court: See 2519680 Ontario Corp v. Sibthorpe, 2018 ONSC 433; Kostiuk v. Porchuk, 2022 ONSC 6141.
[67] While the Landlord and Tenant Board may have jurisdiction to determine this application, this finding does not oust the jurisdiction of the Superior Court of Justice. The application is authorized to be commenced in the Superior Court pursuant to section 207(2) of the RTA, as the monetary relief sought exceeds the monetary jurisdiction of the RTA.
[68] Further, Rule 14.05(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permits a proceeding to be commenced by application to the Superior Court if a statute so authorizes. In the present case, section 207 of the RTA authorizes the matter to be commenced in the Superior Court and provides that the court may exercise any powers that the Landlord and Tenant Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction.
[69] Finally, in addition to seeking a declaration that Ms. West is a trespasser, Mr. Montaque also seeks monetary damages that are rooted in both common law and the Trespass to Property Act, R.S.O. 1990, c. T.21. In these circumstances, it is appropriate that the matter remain in the Superior Court.
ii. Does the Residential Tenancies Act Apply?
[70] The RTA does not apply to the present fact situation as the alleged tenant is a trespasser, no landlord tenant relationship exists, and the property was not at the material time, “intended for use as rented residential premises”: See Section 3 (1) of the RTA, and Section 2 of the RTA re the definition of “rental unit”.
[71] When Ms. West took possession of Cabin C3, she did so without authority and, at the time, the cabin was neither “used” nor “intended for use” as a residential unit. Instead, the cabin was vacant and intended to be sold, not occupied. Occupation was only intended if the property did not sell before the end of September. Occupation was also only intended if a lease agreement with an approved tenant was entered into and executed, which it was not. As none of the conditions precedent were satisfied, the cabin was not at the time of Ms. West’s unlawful possession, intended for use as rented residential premises.
iii. Is Ms. West a Tenant? Is Mr. Montaque a Landlord?
[72] With respect to the issue of whether Ms. West is a tenant, section 2 of the RTA defines the term “tenant” as, “a person who pays rent in return for the right to occupy a rental unit”. Ms. West has never paid rent and therefore does not qualify as a tenant.
[73] With respect to the issue of whether Mr. Montaque is Ms. West’s landlord, although section 2 of the RTA provides that a “tenancy agreement” includes an “oral or implied agreement” the facts do not support a finding that there was any agreement to allow Ms. West to occupy the cabin. As Mr. Montaque never permitted Ms. West to occupy the cabin, Mr. Montaque was never Ms. West’s landlord.
iv. Is Ms. West a Trespasser?
[74] The tort of trespass to land is committed by remaining upon land that is in possession of another without lawful justification. The tort protects a person’s possession of land against wrongful interference: Dagarsho Holdings Limited v. Bluestone, 2004 CanLII 19141 (ON SC), [2004] OTC 52, at para. 36.
[75] Section 1 of the Trespass to Property Act defines “occupier” to include, “a person who is in physical possession of premises, or a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises.” Based on this definition, Mr. Montaque was the occupier of the property, as he was the owner and the person responsible for the property, and in physical possession of the property at all material times.
[76] Section 2(1) of the Trespass to Property Act states:
Trespass an offence 2 (1) Every person who is not acting under a right or authority conferred by law and who, (a) without the express permission of the occupier, the proof of which rests on the defendant, (i) enters on premises when entry is prohibited under this Act, or (ii) engages in an activity on premises when the activity is prohibited under this Act; or (b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a fine of not more than $10,000.
[77] The facts establish that Mr. Montaque was the lawful occupier and directed Ms. West to vacate the property on September 14, 2023. Ms. West did not comply with Mr. Montaque’s direction, nor did she comply with any subsequent directions provided by Mr. Montaque or his various agents. Ms. West refused to vacate and claimed to have an oral agreement, which claim I find to be false. Ms. West established her occupation based on this falsehood and convinced the police that she was entitled to remain.
[78] Ms. West is a trespasser, and her occupation of Mr. Montaque’s property is unauthorized. Having found Ms. West to be a trespasser, Mr. Montaque may be entitled to seek enforcement of a fine. However, given that the application was argued during the short motions list – time did not permit submissions with respect to any fine to be imposed. Determination of the appropriate fine is therefore adjourned to the judge determining the damages claim. If damages are not pursued, the Applicant may seek an appearance, upon notice to Ms. West, to provide brief submissions as to the amount of the fine to be imposed.
DETERMINATION AND ORDER
[79] For the foregoing reasons, I find:
i. No landlord and tenant relationship ever existed between the parties, Mr. Montaque and Ms. West;
ii. The Residential Tenancies Act does not apply to the within application;
iii. Ms. West has no lawful right or interest in the property;
iv. Ms. West is a trespasser upon Mr. Montaque’s property and is required to vacate the premises ON OR BEFORE FEBRUARY 3, 2024, at 4:00 pm, failing which her removal from the premises will be enforced by the Ontario Provincial Police and/or the Sheriff, as may be appropriate;
v. Determination of the quantum of damages owed by Ms. West to Mr. Montaque as requested by the application is adjourned, if pursued by Mr. Montaque, to be argued on a full day long motion date to be obtained from the trial coordinator, such motion is to include viva voce evidence, if desired;
vi. Determination of the quantum of the fine to be imposed pursuant to the Trespass to Property Act, if pursued by Mr. Montaque, shall be determined on a further appointment before me. If requested, said appointment can be obtained from the Regional Scheduler. Otherwise, determination of the quantum of the fine shall be determined by the judge hearing the quantification of damages motion, if damages are pursued by Mr. Montaque;
vii. The Applicant, Mr. Montaque, is entitled to his costs on a substantial indemnity basis. In this regard, if Mr. Montaque seeks to pursue costs, the Applicant shall serve and file his costs submissions limited to five (5) pages within 30 days of the date of these Reasons, with any offers to settle, and a Bill of Costs attached; the Respondent shall serve and file her costs submissions limited to five (5) pages within 60 days of the date of these Reasons; any reply shall be limited to one (1) page to be served and filed within 70 days of the date of these Reasons;
viii. The Applicant shall be entitled to take out an Order in accordance with these Reasons for Decision on an expedited basis and may forward any Order directly to my assistant at Lauralee.mildon@ontario.ca, for signature, issuance and entry. The approval of the Order by Respondent Ms. West be and is hereby dispensed with.
Justice S. J. Woodley